109 Mich. 235 | Mich. | 1896
Lead Opinion
January 22, 1877, John Louden, a resident of Alpena county, died, leaving a widow, Sarah A. Louden, and four children, aged respectively: James S. Louden, 15 years; Andrew B. Louden, 9 years; John L. Louden, 7 years; Sarah A. Louden (now Foster), aged 10 months. These four children are the complainants.
February 5, 1877, the widow petitioned to be made administratrix of the estate, and was appointed administratrix February 28, 1877, and gave a bond which was approved by the judge of probate. Afterwards debts were allowed against the estate, to the amount of $2,400. Appraisers were appointed. The following property was left by the deceased: Lots 1 and 2 in section 33, township of Long Rapids, containing 65f acres, valued at $1,015; lots 3 and 4, same section, 72 acres, valued at $730; 120 acres valued at $600; personal property valued at $212.85. October 15, 1877, the administratrix petitioned for a license to sell the real estate to pay the debts, which order was properly published and posted; and on November 26, 1877, a license to sell the real estate was made by the court, and the administratrix gave the bond required by the court, and took the oath before sale in the usual form. The notice of sale was given for January 26, 1878, and proof of publishing and posting of this notice was duly made.
Before the sale, the administratrix married Patrick Burns. She had also had surveyed by the county surveyor, and selected as a homestead for herself and minor children of the deceased, the premises described in the bill of complaint. The lands were advertised for sale ‘ ‘ sub] ect to the homestead rights of the widow and children of said deceased therein.” January 26, 1878, she made a report of. sale as administratrix, under the name of Sarah A. Louden Burns, and reported that, in pursuance of the license to sell, she had given a bond, and had complied with the other requirements of law, and had also given proper legal notice of said sale, and published and posted the same, and annexed the affidavits of the publisher and
After the death of her husband, Mrs. Louden continued to reside in the dwelling house of the deceased, situated upon the land selected by her as a homestead, and kept complainants with her, as an unbroken family. This continued after her marriage with Burns, and his purchase of the land, until it was sold by Burns and wife to Mrs. Brown (then named Naylor), the mother of defendants, on August 35, 1883. July 3, 1879, Patrick Burns deeded this land to his wife, Sarah A. Burns, the mother of the complainants. This deed was recorded October 16, 1879.
The title of Mr. Louden was not an absolute fee simple, to lots 3 and 4, but he held them under a purchase from the State as partly-paid swamp lands. He paid $33 down, leaving $67.97 unpaid. January 38, 1878, Mrs. Burns, as administratrix, assigned this certificate, so far as it covered the lands in controversy, to Patrick
August 25, 1882, Burns and wife, for $1,200 in cash, deeded the premises in dispute, by a full warranty deed, to Eliza N. Naylor, who at once moved on the land, and lived there undisturbed until her death, in February, 18*93, —a period of nearly 11 years. This Mrs. Naylor was a widow, previously named Brown. She was the mother and grandmother of the defendants in this proceeding. After her purchase of this land she married one Jay Brown, a witness in this proceeding. After Mr. and Mrs. Burns sold the land, in 1882, they and the younger children removed to Alpena.
The complainants filed this bill, claiming that the proceedings to sell the land were void, that the equitable title remained with the ¡complainants, and asked that the legal title held by the defendants be decreed to be in the complainants. The relief asked was granted by the learned circuit judge, and the case was brought here by appeal.
It is claimed that the complainants are entitled to the decree which was rendered'—First, because the premises in question was their homestead; second, because they are the' equitable owners and have the equitable title to the lands described in the bill of complaint. It is claimed that, inasmuch as the title in fee was not in Mr. Louden in his lifetime, but the land was held by a partly-paid certificate, Mrs. Louden, as administratrix, could not make' an assignment of this certificate which would convey any title. The record discloses that she not only assigned the certificate in question to Mr. Burns, but that she also en
Section 5347, 2 How. Stat., provides that—
“Whenever any purchaser or assignee of a purchaser shall die or shall have died before the issuing of a patent for the lands described in any such certificate, his executor or administrator may sell such certificate, and all the right, title, and interest which the deceased had in the lands therein described, for the payment of debts, upon obtaining license therefor, and proceeding in the same manner, as near as may be, as is provided by law for the sale of real estate by executors and administrators for the payment of debts.”
This would seem to authorize the sale of the land described in such certificate as real estate, and it is claimed on the part of the defendants that the land was in fact sold as real estate by the direction of the probate court, and that the sale was confirmed; that the assignment made by Mrs. Louden, as administratrix, of the certificate, was simply to comply with the requirements of the land department, and enable Mr. Burns to get a deed; and it seems to us that this contention has a good deal of force.
So far as we have been able to discover in this record, the only way in which the homestead had been set aside as such was by the action of Mrs. Louden after she had filed a petition for leave to sell the real estate, and when she procured the same to be surveyed by the county surveyor. When she advertised the lands for sale, she advertised them for sale “subject to the homestead rights of the widow and children of said deceased therein.” After the sale, she made a report and a deed describing the land sóidas a “homestead consisting of 40 acres of land, as selected by the widow of said John Louden, for herself and minor children of said deceased, as surveyed and set off by Thomas McGinn;” describing the same land a description of which is in the bill of complaint. This sale was made as described above, subject to the interest that she and the minor children of said deceased
“The homestead right presents the last question for our consideration. The land is exempted only while it is occupied as a homestead by the widow and minor children. Subject to the homestead right, therefore, the lands are assets, when needed for the payment of demands against the estate. In this case the widow became the purchaser, and when she sold and left the land, if she did so,—as we must infer from this record that she did,—we do not see how any one was in position to raise the question of a homestead. We are not informed when the children came of age, but it clearly appears they were so when this suit was brought, and that is all it is important for us to know on that subject.”
1 It was held in the case of Robinson v. Baker, 47 Mich. 619, that the constitutional and statutory exemption of a homestead from forced sale for the satisfaction of the debts of the owner, and from being conveyed or mortgaged by the owner without the consent of his wife, and which extends the protection for the benefit of the widow and minor children after the owner’s death, does not preclude proceedings for partition, as between the heirs at law or their assignees. In Dei v. Habel, 41 Mich. 88, it was held that a widow may deprive herself of 'her homestead.rights by marrying again; and in the case of Griffin v. Johnson, 37 Mich. 87, that she may do so by uniting with the administrator in a mortgage to pay the debts of her deceased husband. In the case of
“It was not decided in that case, nor was it necessary to decide, that the course adopted was the most suitable. It seems plain that the practice followed in Illinois and Ohio is more for the interest of all concerned; and, if an application for a sale subject to the homestead right should be contested, it is probable that some method would be found, not inconsistent with the statutes, of so dealing with the case as to protect at once the interests of the family and of the creditors. But, at most, a sale subject to the homestead right would be voidable on appeal. It would not be void.”
We think it clear that if this decree is to stand, now that the children have attained their majority (excepting Mrs. Foster, who has a home elsewhere), it must stand upon other grounds than because the sale is void on the ground that the land was a homestead.
The other ground upon which it is claimed that this sale is void is that the administratrix sold it to her hus
It is strongly urged that as the sale to Burns, and by him to Mrs. Louden, was fraudulent and void, Mrs. Naylor would get no better title than they had, and that she was not a bona fide purchaser. The record does disclose that Mrs. Naylor lived near these premises, and knew them while they were occupied by Mr. Louden and his family, and there is some testimony on the part of Jay Brown that he had some talk with her about the purchase before she made it. It is very evident, however, that Mr. Brown’s testimony is not entitled to very much credit. It appears that he himself, after he claimed to have had the talk with Mrs. Naylor, loaned her $300, and took a mortgage on the same land. It also appears from his testimony that Mrs. Naylor consulted Mr. Clayberg, a reputable attorney, before making the purchase, and that, after having done so, she paid $1,200 for this land, and took a deed of it. Taking the testimony contained in the record
After a careful inspection of the record, we do not think the complainants have made such a case as to entitle them to the relief prayed for. The decree of the court below is reversed, and one entered dismissing the bill 'of complaint, with costs.
Dissenting Opinion
(dissenting). I am not able to agree with the conclusion reached by my brethren. In my judgment, the sale by Mrs. Burns, as administratrix, to her husband, by which, if authorized, at least an inchoate right of dower would vest in her, was invalid.
